Bombay High Court
Charu K.Mehta vs Lilavati Kirtilal Mehta Medical ... on 6 November, 2012
Bench: Dr. D.Y. Chandrachud, A.A. Sayed
VBC 1/68 appl234.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O. O. C. J.
APPEAL (L) No.234 of 2012
IN
ORIGINATING SUMMONS NO.2029 OF 2011
IN
SUIT NO.2964 OF 2011
Charu K.Mehta. ...Appellant.
Vs.
Lilavati Kirtilal Mehta Medical Trust & Ors. ...Respondents.
WITH
APPEAL (L) NO.253 OF 2012
IN
ORIGINATING SUMMONS NO.2029 OF 2011
IN
SUIT NO.2964 OF 2011
Lilavati Kirtilal Mehta Medical Trust & Ors. ...Appellants.
Vs.
Charu K.Mehta & Ors. ...Respondents.
....
Mr.Iqbal Chagla, Senior Advocate with Mr.Dhirendra Sinha i/b.Vidhil Partners
for the Appellants in Appeal (L) 253/12 and for Respondent Nos.5 to 7 in
Appeal (L) 234/12.
Mr.J.P.Cama, Senior Advocate with Mr.Raj Patel, Mr.Karl Tamboli, Mr.Hetal
Thakore, Mr.Rizvi Naserrali and Mr.Abhishek Prabhu i/b. Thakore Jariwala &
Associates for Appellant in Appeal (L) 234/12 and for Respondent No.1 in
Appeal (L) 253/12.
Mr.Mahesh Jethmalani i/b. Ms.Ridhi Shah for Respondent No.2 in both
Appeals.
Mr.Prateek Seksaria with Ms.Jesal Shah i/b. Daru Shah & Co. for
Respondent No.3.
Mr.Dinyar D.Madon, Senior Advocate with Mr.Kunal Vajani, Mr.Pranay Goyal
and Mr.Chinmaya Gajaria i/b. M/s.Wadia Ghandy & Co. for Respondent No.5
in Appeal (L) 253/12 and for Respondent Nos. 1 and 8 in Appeal (L) 234/12.
Dr.Poornima Advani with Mr.Om Prakash Jha and Ms.Viralethi S.Hegde i/b.
the Law Point for Respondent No.6.
Mr.Dakshesh Vyas with Mr.Nagendra Dube i/b. Lex Conveniens for
Respondent Nos.8 and 11 in Appeal (L) 253/12 and for Respondent Nos.12
and 15 in Appeal (L) 234/12.
Mr.Pranav Badheka with Mr.Prashant Pawar and Mr.Devrath Singh i/b.
Mr.Shayam Upadhyay and Mr.Parag Sharma for Respondent Nos.13 and 16
in Appeal (L) 234/12 and for Respondent Nos.8, 8 and 12 in Appeal (L)
253/12.
.....
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VBC 2/68 appl234.12
CORAM : DR.D.Y.CHANDRACHUD AND
A.A. SAYED, JJ.
November 6, 2012.
JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) :
These appeals arise from a decision of a Learned Single Judge
dated 5 March 2012 on an Originating Summons filed under Rule 238 of the
Rules framed by this Court for the Original Side.
2. The Plaintiff, Charu K.Mehta, is a permanent trustee for life time of
the First Defendant which is a public trust by the name of Lilavati Kirtilal
Mehta Medical Trust.
By an Indenture of Trust dated 5 July 1978, the
Settlor, Kirtilal Manilal Mehta, established a Trust inter alia to afford medical
relief and for the spread of medical science, including by the establishment,
maintenance and support of hospitals. Under the Deed of Trust, the Plaintiff
and the Second and Third Defendants were named as permanent trustees
for life. The Plaintiff is the wife of the Second Defendant. The Second
Defendant is one of the sons of the Settlor. The Third Defendant is the
daughter of the Settlor.
3. The Second Defendant filed an application on 6 July 1978 before
the Charity Commissioner for the registration of the Trust under Section 18 of
the Bombay Public Trusts Act, 1950. The Assistant Charity Commissioner
conducted an enquiry under Section 19 and directed the registration of the
Trust on 8 August 1978. In pursuance of the order of the Charity
Commissioner, entries as required, were made under Section 21 in the Public
Trust Register.
VBC 3/68 appl234.12
Appointment of Trustees:
4. Clause 11(j) of the Deed of Trust confers upon the trustees the
power to appoint any person to fill any vacancy or vacancies in the office of
the Trustees or to appoint any additional trustee or trustees. This power has
been conferred for the accomplishment of the Trust and without prejudice to
generality of the powers conferred by the Deed of Trust or which by law may
be conferred, implied or vested in the trustees. Under the Deed of Trust, the
following provisions were made for the appointment of the trustees:
(i) Clause 16 provides that the Plaintiff and the Second and Third
Defendants shall be permanent trustees for life time;
(ii) Clause 17 empowers the permanent trustees to appoint a
permanent trustee or trustees for a term of five years;
(iii) Clause 20 empowered the Settlor, during his life time, to appoint
trustees for a period of five years and thereafter, upon his death, his son,
Vijay Mehta was vested with "the same power to appoint not less than five
trustees";
(iv) Clause 14 provides that in the event that the trustees constituted
under the Deed of Trust or those appointed thereafter were to die; desire to
be discharged; refuse or become incapable to act; were adjudicated insolvent;
convicted of a criminal offence involving moral turpitude and punished with
imprisonment exceeding six months; remained absent from India for a period
over twelve months without the leave of the trustees; or were absconding for a
period of three months or more without intimating his or their whereabouts,
VBC 4/68 appl234.12
the surviving or continuing trustees could appoint for the time being, persons
in place of the trustees incurring disqualification.
5. The Settlor died on 20 July 1993. During his life time, his son
Vijay, was appointed as a trustee for a period of five years on 23 July 1990.
Vijay died on 24 July 2010.
The Originating Summons:
6. The Originating Summons has been instituted on the ground that
the interpretation of the Trust Deed with respect to the appointment of the
trustees, the powers of individual trustees and the mode of administration of
the Trust has led to litigation between the trustees.
7. The basis on which the Plaintiff instituted an Originating Summons
is as follows :
(i) Under Clause 20 of the Deed of Trust, Vijay, as the son of the
Settlor, is vested with the "same power" as the Settlor to appoint "not less
than five trustees". According to the Plaintiff, the expression "not less than
five trustees" should be construed to mean the appointment of trustees upto a
maximum of five. However, according to the Plaintiff, Vijay appointed trustees
(including the Fifth Defendant on 15 January 2007) though he had already
appointed five trustees. The case of the Plaintiff is that Vijay contravened
Clause 20 by making appointments in excess of five trustees though persons
already appointed were acting as such at the relevant time. The Plaintiff has
stated that these appointments by Vijay Mehta in excess of five trustees have
VBC 5/68 appl234.12
been challenged in various proceedings. According to the Plaintiff, the
expression "not less than five trustees" meant that Vijay Mehta had the power
to appoint a maximum of five term trustees;
(ii) Clause 14, it is urged, "lays down certain disqualifications", but
only provides for an interim appointment of a person in place of a trustee
suffering a disqualification. A change report was filed by Vijay Mehta claiming
that the Second Defendant remained absent from India for a period of twelve
months without the leave of the trustees in writing. According to the Plaintiff,
as a matter of record, the Second Defendant did obtain the leave of the Board
of Trustees. But even assuming that he did not, a permanent trustee -it is
urged - could not be removed and at the highest, an appointment could have
been made in his place for the duration of his absence. A permanent trustee
appointed for life time under Clause 16, it is urged, is not susceptible to a
disqualification to which other trustees are subject except such disqualification
which may render them inherently incapable of executing the Trust.
Moreover, a trustee who incurs a temporary disqualification cannot be
removed, but can only be substituted by a new trustee for such period as a
disqualification persists;
(iii) The power conferred upon the trustees in Clause 11(j) to appoint
any person to fill in a vacancy in the office of trustees or to appoint additional
trustees cannot be utilised to prejudice the rights of permanent trustees under
Clause 17 to appoint a permanent trustee or the power conferred under
Clause 20 on Vijay Mehta (during his life time) to appoint term trustees. What
VBC 6/68 appl234.12
the Settlor intended is that basically the three permanent trustees would
have the power to appoint additional trustees either as permanent trustees or
as term trustees for five years not exceeding three and the remaining five
trustees would be appointed by the Settlor as term trustees and on his death,
by his son, Vijay Mehta. The power under Clause 11(j) to appoint new or
additional trustees can be utilised only when Clauses 17 and 20 cease to be
operational. However, by misinterpreting Clause 11(j), the Defendants
appointed Defendant No.11 as a permanent trustee to fill in an alleged
vacancy created on the death of Vijay Mehta in respect of which the change
report is stated to be pending adjudication. A suit was instituted before the
City Civil Court challenging the appointment of Defendant No.11. At all
material times, since the inception of the Trust, till the appointment of
Defendant No.11, all trustees have been appointed under Clause 17 or 20
and taking recourse to Clause 11(j) would it is urged be contrary to the wishes
of the Settlor as reflected in the Trust Deed. Clause 11(j) embodies a
residuary power which can be exercised only when Clause 17 and Clause 20
are inoperational. In any event, Clause 11(j) cannot be utilised to appoint a
permanent trustee for which a specific power is conferred in Clause 17 of the
Deed of Trust. Clause 11(j) is a general power which cannot override Clause
17;
(iv) The appointment of a proxy under Clauses 11(h) and 11(k) is only
for the purposes of accomplishing the Trust. However, in the past, several
persons appointed as trustees had furnished a Power of Attorney to Vijay
Mehta to attend a meeting of the Board of Trustees and to take decisions
VBC 7/68 appl234.12
relating to the management and administration of the Trust and its affairs and
properties. A trustee cannot delegate his power under a Deed of Trust,
trusteeship being an office of confidence. Clause 11(k) only contemplates
that the power of trustees can be represented by a proxy at an outside
meeting and does not confer power on an individual trustee to appoint a proxy
to attend and vote at a meeting of the Board of Trustees. Resolutions passed
by any proxy at a meeting of the Board of Trustees are consequently invalid.
8. On this foundation, the Plaintiff has framed the following questions
for the determination of this Court in the Originating Summons:
"a) Whether the expression "not less than five trustees" as
appearing in Clause 20 of the Trust Deed dated 05.07.1978 of the
Lilavati Kirtilal Mehta Medical Trust means or implies the power to
appoint upto a maximum of five trustees, who will act as trustees
for a period of 5 years;
b) Whether the Permanent Trustees named under Clause 16 of
the Trust Deed are Permanent Trustees for lifetime and are not
susceptible to any disqualification to which the trustees appointed
otherwise are, except such disqualification which may render them
inherently incapable of executing the trust;
c) Whether an appointment for the time being of a person in place
of a Trustee suffering from any disqualification under Clause 14 of
the Trust Deed dated 05.07.1978, is an appointment only for such
time that the disqualification continues, subject, however to the
unexpired term of the disqualified Trustee;
d) Whether the power under Clause 11(j) for appointment of
additional/new Trustees can be resorted to till such time as such
an appointment is capable of being done under Clause 17 or
Clause 20 of the Trust Deed;
e) Whether Clause 11(j) of the Trust Deed permits that
appointment of Permanent Trustee/s, which is a specific power as
provided under Clause 17 of the said Deed of Trust;
f) Whether the powers and authorities of the Trustees listed in
sub-clauses (a) to (zi) under Clause 11 of the Deed of Trust are
VBC 8/68 appl234.12
expressly conferred on the "trustees", i.e., the collective body of
the Board of Trustees of the Trust or on individual Trustees;
g) Whether the appointment of a power of attorney holder under
clause 11(h) or a proxy under clause 11(k) of the Trust Deed can
be done only by the collective body of the Board of Trustees or
whether the same can be done by an individual trustee;
h) Whether a power of attorney holder appointed under Clause
11(h) or a proxy appointed under Clause 11(k) of the Trust Deed
can be delegated discretionary duties or powers of a trustee
including, but not restricted to, the power to attend/discuss/
participate/vote/pass a resolution/constitute a quorum in a
meeting of the Board of Trustees of the said trust, or whether such
power of attorney holder or proxy can be delegated purely
ministerial acts only."
The judgment in appeal:
9. The Learned Single Judge by a judgment and order dated 5
March 2012 came to the conclusion that the Originating Summons was
maintainable. Four preliminary issues were raised, having regard to the
defence of the Defendants, these being :
(I) Whether the jurisdiction of the Court to interpret the clauses
of the trust deed is barred by virtue of clause 11(v) thereof;
(II) Whether this Court lacks inherent jurisdiction to entertain
and try this Originating Summons in view of Section 80 of the
Bombay Public Trusts Act, 1950;
(III) Whether the Originating Summons is not maintainable as
the Plaintiff had not obtained the permission of the Charity
Commissioner under Section 51 of the BPT Act to file it; and
(IV) Whether the Originating Summons is barred by limitation.
The Learned Single Judge held that: (i) The power which is conferred upon
the trustees in Clause 11(v) of the Deed of Trust to decide all questions
arising in the administration of the Trusts, including all questions relating to
the interpretation of its provisions did not bar the jurisdiction of the Court to
VBC 9/68 appl234.12
interpret the provisions of the Deed; (ii) While Section 80 of the Bombay
Public Trusts Act, 1950 bars the jurisdiction of the Civil Court to decide or deal
with any question which is to be decided or dealt with by any officer or
authority under the Act and in respect of which the decision of such officer or
authority is made final and conclusive, the Assistant Charity Commissioner
has no power akin to Rule 238 of the High Court Original Side Rules to decide
the construction of a deed simpliciter; (iii) What is made final and conclusive
in Section 22 is whether a change should be effected or not but the findings
on the issues which may be required to be dealt with while arriving at this
decision are not made final. In other words, what is made final and conclusive
is an amendment in the entries pursuant to a decision under Section 22 and
not a finding on the basis of which those entries are arrived at; (iv) The
Originating Summons was not barred by Section 50 since the direction and
interpretation which the Plaintiff seeks did not fall within the ambit of that
provision; and (v) In an Originating Summons, the question of a right to sue
does not arise, there being no lis between the parties and since the Plaintiff
only seeks an interpretation of the provisions of the Deed of Trust. The right
under Rule 238 was held to be a continuing right.
10. Having answered the preliminary objection as noted above, the
Learned Single Judge recorded that the Plaintiff does not want to lead any
evidence and that consequently as the Plaintiff did not wish to lead any
evidence, the Defendants stated that they do not desire to lead any evidence
either. The Learned Single Judge came to the conclusion that the exercise of
his discretion was not warranted and that this was not an appropriate matter
VBC 10/68 appl234.12
to be decided on an Originating Summons. For one thing, the Learned Single
Judge was of the view that the Plaintiff and most of the Defendants are
trustees, but are not beneficiaries and the consequence of a finding on a
demurer in a summary proceeding under Rule 238 would affect the
beneficiaries of and proper administration of the Trust. The Learned Single
Judge also relied upon certain observations in a judgment of a Division Bench
of this Court while entertaining an Appeal from Order against an interlocutory
order of the City Civil Court that in the present case the documentary
material, surrounding circumstances and evidence would have to be enquired
into. The Learned Single Judge was of the view that the clauses of the Deed
of Trust are riddled with complexities which can only be resolved on an in
depth analysis after considering all available evidence, documentary as well
as oral. A decision as to whether the provisions of the Deed of Trust are in
conflict with each other, it was held, would be required to be tested in a trial
and not in a summary proceeding. After considering the provisions of the
Deed of Trust, the Learned Single Judge inter alia held that Clause 20 for
instance, may call for a rectification of the Trust Deed, but that would not
entitle the Court to interpret the deed contrary to its express terms. Several
proceedings, it has been held, have been filed to challenge the exercise of the
powers by Vijay Mehta under Clause 20 which are pending and it would be
appropriate if that clause is interpreted in such proceedings. An interpretation
of the clause, even in favour of the Plaintiff, it was held would not necessarily
put an end to the proceedings which have been filed. Principally on the basis
of these findings, the Learned Single Judge has declined to exercise his
discretion under Rule 238.
VBC 11/68 appl234.12
Originating Summons:
(i) High Court Rules:
11. Chapter XVII of the rules framed by the High Court of Judicature
at Bombay on the Original Side deals with Originating Summons. Rule 238
provides as follows :
"R. 238 Who may apply for the issue of originating summons and in
respect of what matters. - The executors or administrators of a
deceased person or any of them and the trustees under any deed or
instrument or any of them, and any person claiming to be interested in
the relief sought as creditor, devisee, legatee, heir or legal
representative, or as beneficiary under the trusts of any deed or
instrument, or as claiming by assignment or otherwise under any such
creditor or other person as aforesaid, may apply for the issue of an
Originating Summons returnable before the Judge in Chambers for
such relief of the nature or kind following as may by summons be
specified and circumstances of the case may require (that is to say),
the determination, without an administration of the estate or trust, of
any of the following questions or matters :-
(a) any question affecting the rights or interest of the person
claiming to be creditor, devisee, legatee, heir or legal representative or
beneficiary;
(b) the ascertainment of any class of creditors, devisees,
legatees, heirs, legal representatives, beneficiaries or others;
( c) the furnishing of any particular accounts by the executors,
administrators or trustees and the vouching (when necessary) of such
accounts;
(d) the payment into Court of any moneys in the hands of the
executors, administrators or trustees;
(e) directing the executors, administrators or trustees to do or
abstain from doing any particular act in their character as such
executors, administrators or trustees;
(f) the approval of any sale, purchase, compromise or other
transaction;
VBC 12/68 appl234.12
(g) the determination of any question arising in the
administration of the estate or trust."
12. Since in the present case the jurisdiction of the Court has been
invoked to interpret a deed of trust constituting a public trust, Rule 238 must
be construed in that context. Hence, under the rule the trustees under any
deed or instrument and any person claiming to be interested in the relief
sought as a beneficiary under the trust of any deed or instrument may apply
for the issuance of an Originating Summons for the determination without the
administration of the trust, of any of the following questions or matters :
(i) any question affecting the rights or interest of the person claiming to be
a beneficiary;
(ii) the ascertainment of any class of beneficiaries;
(iii) the furnishing of any particular accounts by the trustees and the
vouching of accounts;
(iv) the payment into Court of any moneys in the hands of trustees;
(v) directing the executors to do or abstain from doing any particular act in
their character as trustees;
(vi) the approval of any sale, purchase, compromise or other transaction;
and
(vii) the determination of any question arising in the administration of the
estate or trust.
13. Under Rule 239 any of the persons named in Rule 238 may, in
like manner, apply for and obtain an order inter alia for the administration of
the trust. Rule 240 provides for the service of the summons. Under Rule
241 a vendor or purchaser of immovable property may apply for the issuance
of an Originating Summons. Under Rule 243 and Rule 244 respectively a
VBC 13/68 appl234.12
mortgagee or mortgagor and a partner in a firm may inter alia apply for the
issuance of an Originating Summons. Rule 245 specifies among other things
that any person claiming to be interested under a deed or other written
instrument, may apply for the issuance of an Originating Summons for the
determination of any question of construction arising under the instrument and
for a declaration of the rights of the person interested.
14. Rule 246 provides as follows :
"R. 246. Court not bound to determine question of construction. -
The Court or the Judge in chambers shall not be bound to determine
any such question of construction if in its or his opinion it ought not to
be determined on Originating Summons."
Hence, a discretion is conferred upon the Court or the Judge in chambers on
whether or not a question of construction should be decided in an Originating
Summons. Rule 249 stipulates that an Originating Summons shall be in form
No. 23 and shall specify the relief that is sought. The person entitled to apply
is required to present the Originating Summons to the Prothonotary and
Senior Master in the form of a plaint without a prayer, but setting forth the
facts upon which the relief sought by the summons is founded. The plaint has
to specify at the end, but not in the form of a prayer the relief which is sought
by the summons. No documents have to be annexed to the plaint unless this
is so required in the interests of brevity or clarity. Once accepted the plaint is
numbered under Rule 250 as an ordinary suit, but with the distinguishing
label "O.S." as a mark of distinction from plaints filed in ordinary suits. Upon
the service of the Originating Summons Rule 253 specifies that while a
defendant may file a written statement or an affidavit in answer to the plaint,
VBC 14/68 appl234.12
there shall be no obligation to do so unless the Court otherwise directs. Rule
254 empowers the Judge, if the parties do not agree on the correctness of the
facts set forth in the plaint to order that the summons be supported by such
evidence as he may think necessary and to give such directions as he may
think just for the trial of any question arising therefrom. Rule 255 enables a
Judge hearing the summons to adjourn it to Court or if he considers that the
matters in respect of which relief is sought cannot appropriately be disposed
of in an Originating Summons to dismiss the summons and relegate parties to
a suit in the normal course. Rule 255 provides as follows :
R. 255 - What may be done on hearing originating summons. - The
Judge hearing an Originating Summons may, if he thinks fit, adjourn
the summons into Court. If the Judge considers that the matters in
respect of which relief is sought cannot conveniently and properly be
disposed of on an Originating Summons, he may refuse to pass any
order on the summons, may dismiss the same and refer the parties to
a suit in the ordinary course, and in such case may make such order as
to costs already incurred as may seem to him to be just."
15. Under Rule 258, if the Judge is of opinion that a matter is fit to be
dealt with on an Originating Summons, he must pronounce such judgment as
the nature of the case shall require and any order made shall be drawn up as
a decree of the Court. Thereupon under Rule 259 the Judge is empowered to
issue directions touching the carriage or execution of the decree or the
service thereof on persons who are not parties, as he may think fit.
(ii) The origin of the doctrine in England:
16. The origin of the rules of procedure in England dealing with the
issuance of Originating Summons has been traced in a judgment of 1894 of
VBC 15/68 appl234.12
Lindley, L.J., speaking for the Court of Appeal in Re W. Holloway1. Before
the enactment of the Chancery Procedure Act of 1852, the ordinary mode of
commencing proceedings in the Court of Chancery was by a bill. In certain
other cases proceedings could be commenced by a petition. Under the
General Orders of the Court of Chancery of April 1850, this procedure was
simplified by the introduction of claims, a claim being a short "bill" without
interrogatories "applicable to simple cases"2. This procedure was further
simplified by the Act of 1852 under which in certain cases the commencement
of a suit in Chancery was contemplated by a summons originating
proceedings in chambers. The Court of Appeal noted :
"What, then, was an "originating summons" at that time ? It was a
method of commencing proceedings in Chancery by a summons in
chambers instead of by bill. At the time when the Judicature Act was
passed there were two kinds of summonses in use, an ordinary
summons and an "originating summons", the latter being used in the
Court of Chancery in certain cases instead of a bill. The Rules of the
Supreme Court of 1875 did not affect the practice of the Chancery
Division as regarded originating summonses. The rules were re-cast in
1883, and then the term "originating summons" was for the first time
introduced into the Judicature Rules and defined. The term, however,
had not lost its original meaning. It still meant a summons which
originated proceedings in Chancery, the summons being substituted for
a writ in a suit or an action, which had by the Judicature Act taken the
place of a suit"
In other words an Originating Summons meant "only a summons by which
proceedings are commenced which must formerly have been commenced by
a bill or a writ.".
17. Mr. Justice Chitty in the case of Re Busfield ; Whaley v.
1 1894 Vol. 2 QB 163.
2 (at page 167).
VBC 16/68 appl234.12
Busjield3 observed that Originating Summons when they first arose, were
confined to "the simple case of an order for the administration of the personal
estate of a dead man". After 1883 the subject was enlarged to include, for
instance, the execution of trust. The main difference between a writ of
summons and an Originating summons was held to be that in the one case
the proceedings were in Court, and there are or may be pleadings, whereas in
the other case the proceedings are in chambers, and there are no pleadings.
The Court of Appeal, in Re Fawsitt ; Galland v. Burton 4, noted that an
Originating Summons taken out under Order LV., R. 3 was "a civil proceeding
commenced otherwise than by writ in manner prescribed by a rule of court".
In a succinct statement of the object and purpose underlying an Originating
Summons, Cotton LJ in re Giles5, observed that:
"This form of action is intended to enable simple matters to be settled
by the Court without the expense of bringing action in the usual way,
not to enable the Courts to determine matters which invoke a serious
question."
In other words, an Originating Summons was suited to those cases where
there was little or no dispute of fact and the parties raised issues of law for
the interpretation of the Court. In a decision of 1907, Neville, J. stated the
principle in the English case of Re King Mellor v. South Australian Land
Mortgage and Agency Co6 as follows :
"In other words, it is our considered view that originating summons
should only be applicable in such circumstances as where there is no
dispute on questions of fact or the likelihood of such dispute. Where,
31(54 L. T. Rep. N. S. 220; 32 Ch. Div. 125; 55 L. J. 467, Ch. ; 34 W. R. 372).
4(53 L. T. Rep. N. S. 271 ; 30 Ch. Div. 231; 54 L. J. 1131, Ch. ; 34 W. R. 26).
51890 43 Ch.D.391, 398, as quoted by Pratt J, in Vithaldas Cusondas v.
Dalsukhbhai Vadilal, 21 Bom. L.R 972.
6(1907) 1 Ch. 72.
VBC 17/68 appl234.12
for instance, the issue is to determine short questions of construction,
and not matters of such controversy that the justice of the case would
demand the settling of pleadings, originating summons could be
applicable. For it is to be noted that originating summons is merely a
method of procedure and not one that is meant to enlarge the
jurisdiction of the court"
On the other hand, claims which are of a contentious nature, involving
beneficiaries against trustees would not be begun by originating summons,
but rather by a writ 7. In Punton v. Ministry of Pensions and National
Insurance8 the claimants who were semi skilled workers became unemployed
during a trade dispute between the members of two skilled trade unions at
their place of work. Refused unemployment benefit, they appealed to the
National Insurance Commissioner who held that they were disqualified from
receiving benefit on the ground that under the provisions of Section 13 of the
National Insurance Act 1946, they were persons directly interested in the
trade dispute which caused the stoppage of work. The claimants thereupon
issued an Originating Summons in the Queen's Bench Division asking the
Court to determine whether they were or were not persons directly interested
in the dispute and to declare that they were entitled to unemployment benefit.
On an application by the Ministry of Pensions and National Insurance, the
Master and the Judge on appeal, ordered that the summons should be struck
out as frivolous and vexatious, since it appeared to be an attempt to obtain a
rehearing of matters finally determined by the Commissioner. The Court of
Appeal held initially on interlocutory proceedings that the case presented a
very proper matter for determination by originating summons and "indeed, it is
7Re Sir Lindsay Parkinson & Co. Ltd Trust Deed v. Smith, [1965] I All ER 609 n.
8 (1963) 1 W.L.R. 186.
VBC 18/68 appl234.12
a sensible and modern way of approach" 9. The Court of Appeal held that
when an originating summons is framed so as to raise a distinct and important
point of law, there is not the slightest possible ground for saying that it is
frivolous and vexatious. An amendment of the proceedings was allowed to
reframe the issue as one of interpretation. Following the decision of the Court
of Appeal in interlocutory proceedings, the Originating Summons was
amended to allow the Plaintiffs to seek a determination of the question as to
whether on the facts found, the Commissioner had come to a correct
determination of law. The Trial Judge rejected the preliminary objection to his
jurisdiction holding that he was bound by the earlier decision of the Court of
Appeal in the interlocutory proceedings, but in the exercise of his discretion
refused to make a declaration. On appeal, the Court of Appeal in Punton v.
Ministry of Pensions and National Insurance 10 took a different view from
that which was indicated only provisionally when the matter had come up
earlier at the interlocutory stage. Sellers L.J. speaking for the Court of
Appeal held as follows :
"Apart from certiorari there is no machinery for getting rid of
the decision of the National Insurance Commissioner and, what is more
important, no way of substituting an effective award on which the
claims could be paid. It would be out of harmony with all authority to
have two contrary decisions between the same parties on the same
issues obtained by different procedures, as it were, on parallel courses
which never met or could meet and where the effective decision would
remain with the inferior tribunal and not that of the High Court. ........ It
is a statutory judicial tribunal to deal with a special subject-matter
where the decisions will frequently be on mixed law and fact and where
finality and the minimum of delay are sought to be achieved. There is
much to lead to the implication that the jurisdiction of the courts was
intended to be excluded and very little to be set against such a
conclusion."
9 at page 192.
10 (1964) 1 W.L.R. 226.
VBC 19/68 appl234.12
In a decision of the Chancery Division in Lewis v. Green11, it was held that
the procedure of an originating summons is confined to enabling the court to
decide questions of construction and nothing else and to declare the rights of
parties :
"It is only intended to enable the Court to decide questions of
construction where the decision of those questions, whichever way it
may go, will settle the litigation between the parties. It is not intended
that questions of construction which, if they are decided in one way
only will settle the dispute between the parties, should come up for
decision on an originating summons. It would be most inconvenient to
resort to the order in a case where it is quite uncertain what may be the
ultimate decision on the point of construction, and where if the decision
is in one way it involves further litigation."
18. The Position in law has been summarized in Halsbury's Laws of
England12. The proceedings which are appropriate to be begun by an
originating summons are the following :
"(1) proceedings in which the sole or principal question at issue is, or is
likely to be, one of construction or some question of law;
(2) proceedings in which there is unlikely to be any substantial dispute
of fact."
19. The object of the rule, which deals only with procedure is to
facilitate the determination of short questions of construction which can be
examined without affidavits upon the instrument itself.
(iii) The position in India:
20. The decisions in India on the scope of an Originating Summons
emphasize that while this procedure does not per se forbid a determination of
a question of fact, but where a dispute on facts involves a degree of
11 (1905) 2 Ch. 340.
12 Fourth Edition, Vol. 37 para 130.
VBC 20/68 appl234.12
complexity, an Originating Summons would not be appropriate. In Vithaldas
Cursondas v. Dulsukhbhai Vadilal 13 Mr. Justice Pratt, speaking for the
Court held that :
"the Rules do not forbid questions of fact being determined on an
Originating Summons and this form of action is not always
inappropriate whenever there is a question of fact in dispute".
But the Court held that the procedure of an Originating Summons should not
be applied "where the disputed facts are of such complexity as to involve a
considerable amount of oral evidence". Chief Justice M.C. Chagla, speaking
for a Division Bench of this Court in Mazda Theatres Ltd. v. Gordhandas
Tribhuvandas Mangaldas14 held that the only two questions which are
required are that there must be a written instrument and what should be
required to be done by the Court is a declaration of the rights of the person
interested under the written instrument. The learned Chief Justice held as
follows :
"The right contemplated by that rule is any right, and the whole object
of that rule is to make a procedure available to parties which is both
cheap and expeditious for determination of disputes as to construction
of a written instrument, which dispute could be settled by the Court
interpreting the instrument and determining what the rights of the
parties are. One would have thought that r. 241 was precisely intended
to cover a case like this where a lessor and a lessee are disputing their
mutual rights and the question of those rights can be determined
effectively and finally by the Court construing the relevant provision of
the lease and deciding what the rights of the parties are. It is perhaps
not necessary to point out that our rule is based on the English r. 1 of
O.LIVA, and the view consistently taken by the English Courts that the
word "instrument" used in the rule was meant to receive a wide
construction and applied to any written document under which any right
or liability whether legal or equitable, existed; and there are
innumerable cases in the books where a lease has been construed and
the rights of the lessor and the lessee determined."
13 1919 (21) BLR 972.
14 1954 B.L.R. 1080.
VBC 21/68 appl234.12
In Bhagwandas Ichharam Panchal v. Royal Western India Turf Club
Limited,15 Mr.Justice Madon (as His Lordship then was) summarised the
position as follows:
"The cases in which the Court exercises its discretion under Rule
255 against deciding a question of construction on an originating
summons are also well-settled. In Vithaldas v. Dulsukhbhai16
following English cases, Pratt J. held that an originating summons
was not the proper procedure to be adopted where there were
disputed facts of such complexity as to involve a considerable
amount of oral evidence. Similarly, in Mason v. Schuppisser, at p.
149(2), referred to earlier, Stirling J. observed that one class of
cases to which an originating summons has been held not
appropriate is where there is a disputed question of fact. In Lewis
v. Green Warrington J. refused to hear an originating summons on
the ground that even if the question of construction was decided in
favour of the plaintiff, there were several defences on facts raised
by the defendant which would still remain to be determined and
that the question of construction was not such as would
necessarily put an end to the litigation."
Mr. Justice B.N. Srikrishna (as the Learned Judge then was) speaking for this
Court in Rama Aziz v. Balkrishna K. Mehta 17 held that while exercising
jurisdiction in an Originating Summons the Court "is not determining a lis",
since it does not adjudicate upon the rights and liabilities of parties. The
Division Bench of this Court presided over by Mr. Justice R.M. Lodha (as His
Lordship then was) in Lyla Darius Jehangir v. Bakhtawar Lentin 18 affirmed the
principles which were laid down in the judgments of the learned Single Judges
of this Court in Vithaldas Cursondas and Rama Aziz. These decisions have
been referred to in a recent judgment of a Division Bench of this Court in
15 (1969) LXXII BLR 764
16 (1919) 21 Bom.L.R. 972
17 1993 (1) Bom. C.R. 267
18 2007 (1) Bom. C.R. 915.
VBC 22/68 appl234.12
Jamsheed Kanga v. Parsi Panchayat Funds and Properties 19. In Gokul
Chand De v. Gopi Nath Dey20, a Division Bench of the Calcutta High Court
held that where the dispute between the parties cannot be disposed of merely
by a construction of the deed of trust and where before the rights of parties
can be decided, the Court would have to decide questions such as a plea of
estoppel and a plea of adverse possession which were not pure questions of
law, the procedure by way of an Originating Summons would not be an
appropriate remedy. In Edward H.M.Bower vs. A.M.V. Hesterlow,21 Leach
CJ speaking for a Division Bench of the Madras High Court consisting of the
Chief Justice and Justice Patanjali Shastri (as the Learned Judge then was)
held that where a trust was a public trust and the matter in issue fell within the
purview of Section 92 of the CPC, proceedings under which required the
sanction of the Advocate General, an Originating Summons could not have
been taken out.
21. The jurisprudential origin of the procedure envisaged in an
Originating Summons has been traced by us in order to shed light on how the
procedure has evolved, the rationale for its existence and the limitations
subject to which the procedure has to be applied. History and, for judges
precedent, are illuminating sources of learning. The institution of proceedings
through an Originating Summons was considered as a simple and efficacious
procedure that would be applied in the resolution of simple and
straightforward issues of construction and interpretation. Though the ambit of
19 2011(3) Mh. L.J. 966.
20 AIR 1952 Calcutta 705.
21 AIR 1939 Madras 920 see also the judgment of a Division Bench of the Delhi
High Court in Shanti Devi vs. State AIR 1982 Del.453.
VBC 23/68 appl234.12
the issues that could be decided in an Originating Summons came to be
expanded over time, the principle underlying the invocation of the procedure
remained relatively constant.
22. The rules in regard to Originating Summons indicate that this was
a simple and expeditious procedure of initiating proceedings by applying for
the issuance of an Originating Summons before the Judge in Chambers. The
persons at whose behest an Originating Summons could be issued and the
nature of the relief that could be granted are specified in the rules. A
summary procedure is envisaged. But the summons remains a species of the
original civil jurisdiction in a suit, commencing with a plaint under Rule 248
and ending with the pronouncement of a judgment and the drawing up of a
decree under Rule 259. The judge is empowered to issue directions for the
carriage and execution of the decree (Rule 260). Since the procedure
envisaged is summary, the Judge retains control over the proceedings and
has the discretion as to whether an Originating Summons should be
entertained. Once accepted, the plaint is numbered as an ordinary suit with
the letters O.S.
23. Essentially an Originating Summons has been regarded as an
appropriate remedy where a question of interpretation arises that does not
depend for its resolution upon an appreciation of evidence or determination of
disputed factual matter of some complexity. This principle has been
emphasized in the rules framed by the Chartered High Courts in India among
them those of this Court on the Original Side. Fundamentally, the rules confer
VBC 24/68 appl234.12
a wholesome discretion on the Court or the Judge in Chambers on whether a
question of construction should or should not be determined on an Originating
Summons. Rule 246 emphasizes that the Court shall not be bound to
determine such a question if it is of the opinion that it ought not to be
determined on an Originating Summons. The plaint in an Originating
Summons is a plaint without a prayer 22 and there is no obligation on the
defendant to file a written statement or affidavit in answer to the plaint unless
the Court otherwise directs.23 Similarly, if the parties are not agreed as to the
correctness of the facts set forth in the plaint, the Judge has a discretion to
order the summons to be supported by such evidence as he may think
necessary.24 A Judge hearing the Summons is empowered to adjourn it into
Court. If the Judge considers that the matter in respect of which relief is
sought cannot be conveniently and properly disposed of on an Originating
Summons, he may dismiss the summons and refer the parties to a suit in the
ordinary course.25
24. These provisions indicate that a Judge is not bound to entertain
an Originating Summons or to adjudicate upon the issues which are sought to
be raised. Whether and to what extent evidence should be allowed to be
adduced is again a matter which is in the discretion of the Court. Ultimately,
a judicial discretion is conferred on whether an Originating Summons should
be entertained. The provisions in Chapter XVII of the Rules on the Original
Side which embody the procedure for an Originating Summons have to be
22 Rule 249
23 Rule 253
24 Rule 254
25 Rule 255
VBC 25/68 appl234.12
interpreted broadly and liberally. However, it must be emphasized that the
procedure envisages a summary remedy which is available to determine
issues of construction or interpretation. Though a determination of a factual
issue is not barred on an Originating Summons, conventional learning in this
area is that where complexities of evidence and of fact arise, parties should
be relegated to the remedy of a suit in the ordinary course. Perhaps an
illustration of the nature of the issues that are apposite for determination in
an Originating Summons is the case before the Division Bench in Mazda
Theaters Ltd. vs. Gordhandas Tribhuvandas Mangaldas,26 in which under
a lease deed, the lessee had undertaken an obligation to give complimentary
passes to the lessor and to reserve one box for the use of the lessor and his
family and friends in every show at a theatre. When the Government decided
to levy entertainment duty, the lessee wanted a determination of the question
as to whether under the terms of the lease, the liability to entertainment duty
had to be borne by the lessor. This Court held that an Originating Summons
was precisely intended to cover a case like that where a lessor and a lessee
were disputing their mutual rights and the question of those rights could be
determined effectively and finally by the Court construing the relevant
provision of the lease and deciding what the rights of the parties were.
Similarly, in the RWITC case (supra), Mr.Justice Madon observed that the
case involved a pure question of construction of the Rules of the Jackpot of
the Turf Club; there were no disputed questions of fact, all facts being
admitted in the pleadings or at the hearing of the summons. The liability on
the part of the Defendants to make payment was admitted and the only
26 1954 Vol.LVI BLR 1080
VBC 26/68 appl234.12
dispute between the parties was as regards the mode of payment which
turned on a construction of the Rules. We have referred to these cases
purely as illustrative of a simple dispute of interpretation that can be
conveniently resolved in an Originating Summons. The factual situations in
Mazda Theatre or in RWITC are not exhaustive of what can be determined in
an Originating Summons. But, these are reflective of the fundamental
principle that this procedure was intended to resolve questions of construction
of deeds and documents which do not involve a complicated enquiry into
disputed questions of fact.
The Bombay Public Trusts Act, 1950:
25. The Bombay Public Trusts Act, 1950 is an Act to regulate and to
make better provisions for the administration of public religious and charitable
trusts in the State. Section 17 provides that in every Public Trusts
Registration Office, it shall be the duty of the Deputy or Assistant Charity
Commissioner in charge to keep and maintain such books, indices and other
registers as may also be prescribed. Under Section 18(1), the trustee of a
public trust to which an Act has been applied, is under an obligation to make
an application for the registration of the public trust. Such an application is
required to be made to the Deputy or Assistant Charity Commissioner of the
region within the limits of which the trustee has an office for the administration
of the trust or where the trust property or a substantial portion is situated. An
application for registration inter alia requires to contain a reference to the
mode of succession to the office of a trustee 27 and such other particulars
27 Section 18(5)(ii)
VBC 27/68 appl234.12
which may be prescribed.28 Section 19 provides for an enquiry for
registration. Before proceeding to register a trust, the Deputy or Assistant
Charity Commissioner has to make an enquiry for the purposes of
ascertaining inter alia whether a trust exists and whether such a trust is a
public trust; whether any property is the property of such trust; the origin,
nature and object of the trust and the mode of succession to the office of the
trustee of such trust. On completion of the enquiry under Section 19, the
Deputy or Assistant Charity Commissioner is required by Section 20 to record
his findings together with reasons as to the matters mentioned in the section.
Thereupon, under Section 21, the Deputy or Assistant Charity Commissioner
has to make entries in the register kept under Section 17 in accordance with
the findings recorded by him under Section 20 or, if appeals or applications
are made under the Act, in accordance with the final decision of the
competent authority provided by the Act. Sub-section (2) of Section 21
stipulates that the entries so made shall, subject to the provisions of the Act
and subject to any change recorded under the following provisions, be final
and conclusive.
26. The form in which a public trust register has to be maintained in
prescribed by Rule 5 of the Bombay Public Trusts Rules, 1951 read with the
First Schedule. The entries required to be made in the Register include the
names of the trustees and the mode of succession to trusteeship.
27. Section 22 deals with a situation where a change occurs in any of
28 Section 18(5)(viii)
VBC 28/68 appl234.12
the entries recorded in the register kept under Section 17. Sub-sections (1),
(2) and (3) of Section 22 are relevant for the purposes of the present case and
provide as follows:
"22. Change.- (1) Where any change occurs in any of the entries
recorded in the register kept under Section 17, the trustee shall,
within 90 days from the date of the occurrence of such change, or
where any change is desired in such entries in the interest of the
administration of such public trust, report such change or
proposed change to the Deputy or Assistant Charity
Commissioner in charge of the Public Trusts Registration Office
where the register is kept. Such report shall be made in the
prescribed form.
(1A) Where the change to be reported under sub-section (1)
relates to any immovable property, the trustee shall along with the
report, furnish a memorandum in the prescribed form containing
the particulars (including the name and description of the public
trust) relating to any change in the immovable property of such
public trust, for forwarding it to the Sub-Registrar referred to in
sub-section (7) of section 18.
Such memorandum shall be signed and verified in the
prescribed manner by the trustee or his agent specially authorised
by him in this behalf.
(2) For the purpose of verifying the correctness of the
entries in the register kept under section 17 or ascertaining
whether any change has occurred in any of the particulars
recorded in the register, the Deputy or Assistant Charity
Commissioner may hold an inquiry in the prescribed manner.
(3) If the Deputy or Assistant Charity Commissioner, as
the case may be, after receiving a report under sub-section (1)
and holding an inquiry, if necessary under sub-section (2), or
merely after holding an inquiry under the said sub-section (3), is
satisfied that a change has occurred in any of the entries recorded
in the register kept under Section 17 in regard to a particular
public trust, or that the trust should be removed from the register
by reason of the change, resulting in both the office of the
administration of the trust and the whole of the trust property
ceasing to be situated in the State, he shall record a finding with
the reasons therefor to that effect; and if he is so satisfied, he
shall record a finding with reasons therefor accordingly. Any such
finding shall be appealable to the Charity Commissioner. The
Deputy or Assistant Charity Commissioner shall amend or delete
the entries in the said register in accordance with the finding which
requires an amendment or deletion of entries and if appeals or
VBC 29/68 appl234.12
applications were made against such finding, in accordance with
the final decision of the competent authority provided by this Act.
The amendments in the entries so made subject to any further
amendment on occurrence of a change or any cancellation of
entries, shall be final and conclusive."
28. Under Sub-section (1) of Section 22, a change in any of the
entries recorded in the register kept under Section 17 has to be reported
within ninety days from the occurrence of the change to the Deputy or
Assistant Charity Commissioner. One of the entries which has to be
maintained in the register is the mode of succession to the office of a trustee
and the names of trustees. The Deputy or Assistant Charity Commissioner
has to hold an enquiry for ascertaining whether any change has occurred in
any of the particulars contained in the register. If the Deputy or Assistant
Charity Commissioner is satisfied that a change has occurred in any of the
entries recorded in the register under Section 17, he is required to record a
finding with reasons therefor. Such a finding is appealable to the Charity
Commissioner. The Deputy or Assistant Charity Commissioner has to amend
or delete the entries in the register in accordance with the findings which
require an amendment or deletion of the entries. If appeals or applications
have been made against such findings, he has to amend or delete the entries
in accordance with the final decision of the competent authority provided by
the Act. The amendment in the entries made is under sub-section (3) of
Section 22 mandated to be final and conclusive subject to any further
amendment on occurrence of a change or any cancellation of any entries.
Section 22A empowers the Deputy or Assistant Charity Commissioner to
make a further enquiry if at any time it appears that any particular relating to a
VBC 30/68 appl234.12
public trust which was not a subject matter of the enquiry under Sections 19,
22(3) or 28, as the case may be, has remained to be enquired into. The
provisions of Sections 19, 20, 21 and 22 shall, so far as may be, apply to the
enquiry, the recording of findings and to the making of entries in the register
under the sections.
29. Section 70(1) inter alia provides for an appeal to the Charity
Commissioner against the findings or order of the Deputy or Assistant Charity
Commissioner under Sections 20, 22 and 22A among other provisions. A
person aggrieved by the decision of the Charity Commissioner inter alia under
Section 70 has a further remedy of an appeal to the Court under Section 72.
The expression "Court" is defined in Section 2(4) to mean in Greater Mumbai,
the City Civil Court and elsewhere the District Court.
30. Section 50 provides for a suit by the Charity Commissioner or by
persons having an interest with the consent in writing of the Charity
Commissioner. Section 50 provides as follows:
"50. Suit by or against or relating to public trusts or trustees or
others.- In any case, -
(i) where it is alleged that there is a breach of any public trust,
negligence, misapplication or misconduct on the part of a trustee
or trustees,
(ii) where a direction or decree is required to recover the
possession of or to follow a property belonging or alleged to be
belonging to a public trust or the proceeds thereof or for an
account of such property or proceeds from a trustee, ex-trustee,
alienee, trespasser or any other person including a person holding
adversely to the public trust but not a tenant or licesee,
(iii) where the direction of the Court is deemed necessary for
VBC 31/68 appl234.12
the administration of any public trust, or
(iv) for any declaration or injunction in favour of or against a
public trust or trustee or trustees or beneficiary thereof.
the Charity Commissioner after making such enquiry as he thinks
necessary, or two or more persons having an interest in case the
suit is under sub-clauses (i) to (iii), or one or more such persons in
case the suit is under sub-clause (iv) having obtained the consent
in writing of the Charity Commissioner as provided in section 51
may institute a suit whether contentious or not in the Court within
the local limits of whose jurisdiction the whole or part of the
subject-matter of the trust is situated, to obtain a decree for any of
the following reliefs:-
(a) an order for the recovery of the possession of such property or
proceeds thereof;
(b) the removal of any trustee or manager;
(c) the appointment of a new trustee or manager;
(d) vesting any property in a trustee;
(e) a direction for taking accounts and making certain enquiries;
(f) an order directing the trustees or others to pay to the trust the
loss caused to the same by their breach of trust, negligence,
misapplication, misconduct or willful default;
(g) a declaration as to what proportion of the trust or property or of
the interest therein shall be allocated to any particular object of
the trust;
(h) a direction to apply the trust property or its income cy pres on
the lines of section 56 if this relief is claimed along with any other
relief mentioned in this section;
(i) a direction authorising the whole or any part of the trust
property to be let, sold, mortgaged or exchanged or in any manner
alienated on such terms and conditions as the court may deem
necessary;
(j) the settlement of a scheme, or variations or alterations in a
scheme already settled;
(k) an order for amalgamation of two or more trusts by framing a
common scheme for the same;
VBC 32/68 appl234.12
(l) an order for winding up of any trust and applying the funds
for other charitable purposes;
(m) an order for handing over of one trust to the trustees of
some other trust and deregistering such trust;
(n) an order exonerating the trustees from technical breaches,
etc.;
(o) an order varying, altering, amending or superseding any
instrument of trust;
(p) declaration or denying any right in favour of or against a public
trust or trustee or trustees or beneficiary thereof and issuing
injunctions in appropriate cases; or
(q) granting any other relief as the nature of the case may require
which would be a condition precedent to or consequential to any
of the aforesaid relief or is necessary in the interest of the trust;
Provided that no suit claiming any of the reliefs specified in
this section shall be instituted in respect of any public trust, except
in conformity with the provisions thereof:
Provided further that, the Charity Commissioner may instead
of instituting a suit make an application to the Court for a variation
or alteration in a scheme already settled:
Provided also that, the provisions of this section and other
consequential provisions shall apply to all public trusts, whether
registered or not or exempted from the provisions of this Act under
sub-section (4) of section 1."
Section 50 applies to suits on a specific cause of action and for relief as
specified in the provision. Section 52 has provided that notwithstanding
anything contained in the CPC, the provisions of Sections 92 and 93 will not
apply to public trusts. Under Section 56A(1), a trustee of a public trust may
apply to the Court for the opinion, advice or direction of the Court on any
question affecting the management or administration of the trust property or
income thereof and the Court is required to give its opinion, advice or
direction, as the case may be. The Court is, however, not bound to give its
VBC 33/68 appl234.12
opinion, advice or direction on any question which it considers not proper for
summary disposal.
Bar of jurisdiction:
31. Section 80 contains a bar of jurisdiction and is in the following
terms:
"Bar of jurisdiction.- Save as expressly provided in this Act, no
Civil Court shall have jurisdiction to decide or deal with any
question which is by or under this Act to be decided or dealt with
by any officer or authority under this Act, and in respect of which
the decision or order of such officer or authority has been made
final and conclusive."
32. The salient features of Section 80 are the following :
(i) The bar under Section 80 is subject to an express provision to the
contrary in the Act;
(ii) No Civil Court shall have jurisdiction to decide or deal with any
question where
(a) such a question is required by or under the Act to be decided
or dealt with by any officer or authority under the Act; and
(b) where a decision or order of such officer or authority has been
made final and conclusive by the Act.
The test under Section 80 is whether the question which is raised before the
Civil Court is a question which is required by the Act to be decided or dealt
with by an officer or authority constituted under it. Where that is so and such
a decision of an officer or authority is made final and conclusive under the
provisions of the Act, the jurisdiction of the Civil Court would stand barred.
VBC 34/68 appl234.12
33. In view of the provisions of Section 9 of the Code of Civil
Procedure, 1908, the ouster of jurisdiction of a Civil Court is not readily
assumed or lightly inferred. Ouster of jurisdiction has to be either explicit or
necessarily implied. In Dhulabhai vs. State of Madhya Pradesh,29 which is
the locus classicus on the subject, the Supreme Court has held that where the
statute gives a finality to the orders of special tribunals, the jurisdiction of the
Civil Courts must be held to be excluded if there is adequate remedy to do
what the Civil Courts would normally do in a suit. Where there is an express
bar of the jurisdiction of the Court, an examination of the scheme of the
particular Act to find the adequacy or the sufficiency of the remedies provided
may be relevant, but is not decisive to sustain the jurisdiction of the Civil
Court. But where there is no express exclusion, an examination of the
remedies and the scheme of the Act to find out the intendment becomes
necessary and the result of the enquiry may be decisive.
34. A Full Bench of this Court in Keki Pestonji vs. Khodadad
Merwan Irani,30 enunciated the test to be applied in determining as to
whether the jurisdiction of the Civil Court is barred under Section 80. The
Full Bench held as follows:
"...in order that the jurisdiction of the Civil Court to decide or deal
with a question may be barred under S.80, it is necessary both
that by or under the Act the particular question has to be decided
or dealt with by an officer or authority under the Act and the
decision of such officer or authority has been made final and
conclusive by the Act. The word 'or' which originally appeared in
Section 80 before the last clause "in respect of which the decision
29 AIR 1969 SC 78
30 AIR 1973 Bombay 130
VBC 35/68 appl234.12
or order ......... has been made final and conclusive" had evidently
crept in through oversight. It has been deleted by Maharashtra
Act XX of 1971, probably, to make clear what was not sufficiently
clear."31
The Full Bench held that for deciding whether Section 80 is attracted in a
given case, "one must consider what, in substance and not merely in form, is
the nature of the claim made in the suit and the real relief sought therein". 32
The Court further held:
"If in order to afford that relief it is necessary for the Court to
decide or deal with a question which by or under the act is to be
decided or dealt with by an officer or authority appointed under the
Act, the Civil Court's jurisdiction in that behalf is ousted. Such
questions must be left to the sole and exclusive decision of the
authorities specified in the Act, whether they are questions of fact
or of law and whether they are simple or complicated. It is true
that ouster of jurisdiction of Civil Courts is not to be readily
inferred and the normal rule is the one contained in Section 9 of
the Code of Civil Procedure that Civil Courts have jurisdiction to
try all suits of a civil nature. But this rule is subject to the
exception contained in that section itself and the exception is that
the cognizance of certain suits by Civil Courts may be expressly
or impliedly barred. Section 80 contains an express provision of
ouster and though its dual conditions must be satisfied strictly
before the decision of a question can be barred from the
cognizance of a normal jurisdiction, it would be wrong to import
into that provision any extraneous or collateral considerations, as
for example whether the question involved is simple or
complicated. If law provides that a question must be decided by a
particular authority to the exclusion of the Civil Courts, that
authority cannot throw up its hands in despair and refuse to
decide the question on the ground that it involves consideration of
intricate problems. Nor, indeed, can the Civil Court displace the
jurisdiction of that authority by arrogating to itself the sole power to
decide complicated questions. Once the normal presumption
arising under Section 9 of the Civil Procedure Code is overborne,
there is no scope for limiting the jurisdiction of an exclusive forum
to simple and straightforward questions. What must therefore be
considered here is whether the two conditions of Section 80 are
satisfied."33
31 At para 15 page 133
32 At para 16 page 133
33 At para 16 pages 133 and 134
VBC 36/68 appl234.12
The Full Bench held that a contest regarding the title of a third party has no
place in the scheme of the Act. Hence, a question as regards the title of a
third party to trust property was held not to be a question incidental to the
determination of the main question whether a particular property is the
property of the public trust.
35. In K.Shamrao vs. Assistant Charity Commissioner 34 a bench
of two learned judges of the Supreme Court while construing the provisions of
the Bombay Public Trusts Act, 1950 as applicable to the State of Karnataka,
adverted to Sections 79 and 80 and observed that the decision of the Deputy
or Assistant Charity Commissioner or the Charity Commissioner in appeal, as
the case may be, shall, unless set aside by the decision of the Court on
application or of the High Court in appeal, be final and conclusive. The
Supreme Court held that the Assistant Charity Commissioner has the power
to render a definitive judgment after taking evidence, having regard to the
facts of the case and by the application of the law. The judgment is final
unless interfered with in appeal and thereafter considered in appeal before the
High Court and "the jurisdiction of the Civil Court has been barred in the
matters enquired into and decided by the Assistant Charity Commissioner". 35
Adverting to the functions of the Assistant Charity Commissioner, the
Supreme Court held as follows:
"....the Assistant Charity Commissioner has not only the trappings
of a judicial tribunal but also has power to give a decision or a
definitive judgment which has finality and authoritativeness which
are essential tests of a judicial pronouncement. The Assistant
Charity Commissioner, therefore, possesses all the attributes of a
34 (2003) 3 SCC 563
35 Para 16 page 568
VBC 37/68 appl234.12
court. The fact that the Assistant Charity Commissioner has also
to perform some administrative functions is not of any relevance
for coming to the conclusion that he is not a court, having regard
to the provisions of the Act which substantially confer on him the
power to give a definite judgment subject to finality in appeal, after
hearing all concerned. Functions of the Assistant Charity
Commissioner are predominantly adjudicatory." 36
36. In Sahegouda Vs. Ogeppa,37 the Appellants claimed that they
were ancestral Pujaris of the temple and entitled in that capacity to pujariki
rights. The cause of action for a suit instituted in the Civil Court was that the
Respondents had obstructed the performance of puja in the temple. The
Appellants sought a declaration and injunction. The Supreme Court held that
the provisions of law ousting the jurisdiction of the Civil Court have to be
strictly construed and the onus lies on the party seeking to oust jurisdiction to
establish his right to do so. The Supreme Court noticed that the only right
claimed by the Appellants was as ancestral pujaris and they neither claimed
to be trustees as defined in Section 2(18), nor did they seek a declaration in
regard to the existence of the trust or that any particular property was the
property of the trust. Those reliefs, it was held, did not fall within the ambit of
Sections 19 or 79 of the Act upon which the Deputy or Assistant Charity
Commissioner had jurisdiction to hold an enquiry and give a decision. The
test which must be applied is evident from the following observations of the
Supreme Court:
"In our opinion the decision of the controversies raised in the suit
do not at all require adjudication of any such matter which may
have to be done by the Assistant Charity Commissioner while
exercising his powers under Section 19 of the Act on the
application which was pending before him for registration of the
36 At para 17 page 568
37 (2003) 6 SCC 151
VBC 38/68 appl234.12
Temple and its property as public trust." 38
37. The provisions of Section 80 of the Bombay Public Trusts Act,
1950, in relation to the State of Gujarat came up for consideration before the
Supreme Court in Church of North India vs. Lavajibhai Ratanjibhai. 39 In
that case, the Brethren Church had been registered under the Bombay Public
Trusts Act, 1950. By a resolution of the Church, it was affirmed that the
Church of North India would be deemed to be a successor of the Brethren
Church and the right, title and interest of the former would vest in the latter.
The Brethren Church thereupon ceased to exist as a trust. The Plaintiff
instituted a suit in the Civil Court on the ground that some of the Defendants
had raised a contention that the Brethren Church continued to exist and were
obstructing the functioning of the Church of North India, and in particular,
worship in Churches. In the suit, a declaration was sought that the erstwhile
Church had ceased to exist, that the Church of North India was its successor
together with the right, title and interest in respect of its property and injunctive
relief was sought against the Defendants who were acting in a manner
contrary to the constitution of the Church of North India. While adverting to
the provisions of the Bombay Public Trusts Act, 1950, the Supreme Court
observed as follows:
"The BPT Act is a special law. It confers jurisdiction upon the
Charity Commissioner and other authorities named therein. The
statute has been enacted by the state legislature in public interest
to safeguard the properties vested in the trusts as also control and
management thereof so that the trust property may not be
squandered or the object or purport for which a public trust is
created may not be defeated by the persons having control..."
38 At para 12 page 158
39 (2005) 10 SCC 760
VBC 39/68 appl234.12
The Supreme Court held that the Act is a complete code and provides for the
finality and conclusiveness of an order passed by the Charity Commissioner
inter alia under Sections 21(2) and 22(3). The case before the Court was not
concerned with the creation of any right by the trust in a third party which
would otherwise be beyond the jurisdiction of the Charity Commissioner, nor
with a dispute as regards absolute title to trust property. The test to be
applied was formulated thus :
"With a view to determine the question as regards exclusion of
jurisdiction of the civil court in terms of the provisions of the Act,
the court has to consider what, in substance, and not merely in
form, is the nature of the claim made in the suit and the underlying
object in seeking the real relief therein. If for the purpose of grant
of an appeal, the court comes to the conclusion that the question
is required to be determined or dealt with by an authority under
the Act, the jurisdiction of the civil court must be held to have been
ousted."40
The Supreme Court further held :
"The civil court will have no jurisdiction in relation to a matter
whereover the statutory authorities have the requisite jurisdiction.
On the other hand, if a question arises, which is outside the
purview of the Act or in relation to a matter, unconnected with the
administration or possession of the trust property, the civil court
may have jurisdiction. In this case, having regard to the nature of
the lis, the jurisdiction of the civil court was clearly barred."
The judgment of the High Court holding that jurisdiction was barred, was
upheld.
38. Section 80 of the Bombay Public Trusts Act, 1950 contains an
express bar to the jurisdiction of a Civil Court, but that is subject to the
40 At para 83 page 788
VBC 40/68 appl234.12
satisfaction of dual conditions. The existence of those conditions must be
strictly established before an ouster of jurisdiction can result. The correct test
in law to apply is whether the controversy which is sought to be raised before
the civil court requires an adjudication of a matter or question which has to be
decided or dealt with by an officer or authority under the Act while exercising
his power under the Act and whether such a decision is made final or
conclusive. In determining this issue, the Court has to consider the substance
and not merely the form in which the claim before the civil court is made and
the underlying object of seeking the real relief. If the question which is raised
in the present case in the Originating Summons, is required to be determined
or dealt with by an authority under the Act whose decision on such a matter is
final and conclusive, the jurisdiction of the Civil Court would have to be held to
have been ousted.
39. In holding that the jurisdiction of the Court in the Originating
Summons was not barred, the Learned Single Judge held that what is made
final and conclusive under the provisions of Section 22(3) are the entries
made by the Assistant Charity Commissioner and not the findings on the
basis of which those entries are made. This view of the Learned Single
Judge, with respect, overlooks that under sub-section (3) of Section 22, the
entries which the Deputy or Assistant Charity Commissioner makes have to
be in accordance with the findings which require an amendment or deletion of
the entries. The findings of the Deputy or Assistant Charity Commissioner
constitute the foundation while the entries which he makes are consequential.
Section 22(3) makes an amendment of the entries "so made" final and
VBC 41/68 appl234.12
conclusive subject to an amendment on occurrence of a change or
cancellation of the entries. The entries made are a consequence of the
finding and finality cannot attach to one without the other. To hold otherwise
would be to defeat the legislative intent. This principle of law can be regarded
as being settled by the judgment of the Supreme Court in Hasan Nurani
Malak vs. S.M.Ismail.41 The issue before the Supreme Court was whether
the Assistant Charity Commissioner appointed under the Bombay Public
Trusts Act, 1950 as extended to the area of Vidarbha had jurisdiction to hold
an enquiry under Section 19 in spite of a previous finding by the Registrar
under the M.P. Public Trusts Act, 1951 that the trust was not a public trust
within the meaning of the latter Act. Under the M.P. Act, the Registrar had
held an enquiry and came to the conclusion that the trust was not a public
trust, but on this finding he did not cause an entry to be made in the Register
maintained under the Act. On the reorganization of the States, the Bombay
Public Trusts Act, 1950 was extended to the Vidarbha area and an application
was filed before the Assistant Charity Commissioner to enquire whether the
trust was a public trust. The Appellant unsuccessfully urged before the
Assistant Charity Commissioner that he was precluded from holding an
enquiry under the Bombay Act as a result of the previous determination.
Under the M.P. Act, the Registrar on the completion of his enquiry, was
required to record his findings with reasons and to cause entries to be made
in the Register in accordance with his findings. Section 7(2) provided that "the
entries so made shall, subject to the provisions of this Act and subject to any
change recorded under any provision of this Act or a rule made thereunder,
41 AIR 1967 SC 1742
VBC 42/68 appl234.12
be final and conclusive". Under the Act, the remedy of a suit was available to
have a finding of the Registrar set aside and on the final decision of the suit,
the Registrar was required to correct entries made in the Register in
accordance with the decision. The High Court held that under the M.P.Act,
finality was not conferred on the finding of the Registrar and that finality
attached to an entry made by the Registrar in the Register of the Public Trust.
Moreover, the High Court had held that where the finding was in the negative,
it was not incumbent on the Registrar to make an entry. Hence, the High
Court held that no finality should be given to the finding of the Registrar that
the trust was not a public trust. While reversing the finding of the High Court,
the Supreme Court held that the Registrar was obliged to make an entry in the
register whether his finding was in the affirmative or in the negative. The
Supreme Court held that though it is an entry which is made which has been
given finality, a remedy was made available in the form of a suit against the
finding of the Registrar and where such a finding is set aside, the Registrar
has to correct the entry made in the register in accordance with his finding.
The Supreme Court held that the cause of action of such a suit is thus "the
finding and not the entry which is merely consequential".
40. Under Section 22(3) if the Deputy or Assistant Charity
Commissioner is satisfied after enquiry that a change has occurred in any of
the entries recorded in the register, he is required to record a finding together
with the reasons therefor. An appeal against such a finding is provided to the
Charity Commissioner. The entries in the register have to be amended by the
Deputy or Assistant Charity Commissioner in accordance with the finding and
VBC 43/68 appl234.12
where an appeal or application has been filed against the finding in
accordance with the final decision therein. The amendments in the entries so
made are final and conclusive, subject to a further amendment on the
occurrence of a change or any cancellation of an entry. The entries which
the Deputy or Assistant Charity Commissioner makes have, therefore, to be in
accordance with the finding which he arrives at in the course of the enquiry.
Finality attaches to the entries made in the register. The finality is subject to
an appeal against the findings and upon a final decision of the competent
authority on an appeal or application, the entries in the register would have to
be brought in conformity with those findings. The basic underlying principle is
that though the finality which is prescribed is in respect of the entries made in
the register, the entries are only consequential to the findings of the
competent authority. If the submission of the Plaintiff were to be accepted,
that would lead to an incongruous situation in which the bar under Section 80
to the entertainment of a question by the Civil Court would be attracted in
respect of the entries, but not as regards the findings on the basis of which
the entries were made. Such a construction cannot be adopted. As the
Supreme Court has noted in the Church of North India, the Bombay Public
Trusts Act, 1950 is a special law which confers jurisdiction upon the Charity
Commissioner and other authorities named therein and the provisions of the
Act and the scheme thereof "leave no manner of doubt that the Act is a
complete code in itself".42
41. The Learned Single Judge held that the Deputy or Assistant
42 (2005) 10 SCC 760 at para 82 page 788
VBC 44/68 appl234.12
Charity Commissioner cannot under the act entertain an application for
interpreting a deed of trust simpliciter and hence an Originating Summons
would not be barred under Section 80 of the Bombay Public Trusts Act, 1950.
With the greatest respect, this approach misses the essence of the bar under
Section 80. Under the provision, the bar is on a civil court deciding or dealing
with any question which under the Act has to be decided or dealt with by an
officer or authority and whose decision is made final and conclusive. When
the Assistant Charity Commissioner entertains a change report under Section
22, the question which he has to deal with or decide in the course of the
enquiry and in respect of which finality attaches is excluded from the
jurisdiction of the Civil Court under Section 80. To hold that the Assistant
Charity Commissioner cannot entertain an application in the nature of an
Originating Summons for construction of a deed of trust is to beg the question.
The bar under Section 80 attaches to a civil court dealing with or deciding a
question which the Assistant Charity Commissioner is required to decide or
deal with, and with finality. Once the two requirements of Section 80 are
fulfilled, the bar is attracted. We are hence of the view that on the
construction of Section 80, the Learned Single Judge applied an erroneous
test.
The Letters Patent and the High Court Rules:
42. Section 122 of the Code of Civil Procedure, 1908, empowers the
High Courts to make rules regulating their own procedure and the procedure
of the Civil Courts subject to their superintendence. These rules may annul,
alter or add to the rules contained in the First Schedule to the Code. Section
VBC 45/68 appl234.12
126 provides that the rules made under the foregoing provisions are subject
to the previous approval of the State Government. Section 128(1) provides
that such rules shall not be inconsistent with the provisions in the body of the
Code, but subject thereto, may provide for any matters relating to the
procedure of Civil Courts. Among other things clause (g) of sub-section (2) of
Section 128 stipulates that the rules may provide for the procedure by way of
an Originating Summons. Section 129 provides as follows:
"129 Power of High Courts to make rules as to their original civil
procedure - Notwithstanding anything contained in this Code, any
High Court not being the Court of a Judicial Commissioner may
make such rules not inconsistent with the Letters Patent or order
or other law establishing it, to regulate its own procedure in the
exercise of its original civil jurisdiction as it shall think fit, and
nothing herein contained shall affect the validity of any such rules
in force at the commencement of this Code."
Section 129 begins with a non-obstante clause. Section 129 invests
Chartered High Courts with the power to make rules regulating their own
procedure. This procedure may be inconsistent with the C.P.C., but the rules
must be consistent with the Letters Patent which established the High Court.
Apart from the non-obstante clause with which the section begins, the
provision ends with the stipulation that "nothing herein contained shall affect
the validity of any such rules in force at the commencement of the Code".
Clause 37 of the Letters Patent of the Chartered High Courts at Calcutta,
Bombay and Madras is identically worded and allows those High Courts to
make rules and orders regulating proceedings in civil cases. Clause 37
provides as follows:
"37. And we do further ordain that it shall be lawful for the said
High Court of Judicature ... from time to time, to make rules and
VBC 46/68 appl234.12
orders for the purpose of regulating all proceedings in civil cases
which may be brought before the said High Court, including
proceedings in its Admiralty, Vice-Admiralty, Testamentary,
Intestate and Matrimonial Jurisdictions, respectively: Provided
that the said High Court shall be guided in making such rules and
orders as far as possible, by the provisions of the Code of Civil
Procedure, being an Act passed by the Governor-General in
Council, and being Act No.VIII of 1859, and the provisions of any
law which has been made amending or altering the same, by
competent legislative authority for India."
43. In Iridium India Telecom Ltd. vs. Motorola Inc.,43 the Supreme
Court upheld the view of this Court that the amended provisions of Order VIII
Rule 1 of the CPC would not apply to a suit on the Original Side of the High
Court and that such a suit would be governed by the Original Side Rules.
The Supreme Court noted that the legislature recognized the special role
assigned to the Chartered High Courts and exempted them from the
application of several provisions of the Code in the exercise of their ordinary
and extra-ordinary civil jurisdiction for the simple reason that those
jurisdictions were governed by the procedure prescribed by the rules made in
exercise of the powers conferred by Clause 37 of the Letters Patent on the
Chartered High Courts. The Supreme Court held that the object of inserting
Section 129 in its present form in the C.P.C. was exactly the purpose for
which it was inserted in the C.P.C. of 1882 by an Amending Act of 1895,
namely:
".... "to recognize the practical expediency of leaving such High
Courts some latitude in the direction of adapting the provisions of
the ordinary law to meet their requirements", and that further, "it
had been found by experience that these provisions were not in all
respects convenient in the case of original proceedings in those
Courts". The amendment, therefore, became necessary "to bring
the Code into perfect harmony with the provisions of the Letters
43 AIR 2005 SC 514
VBC 47/68 appl234.12
Patent and to enable the High Courts referred to to regulate the
exercise of their original civil jurisdiction accordingly.
It appears to us that this was the real reason why a
distinction was drawn between the proceedings in original
jurisdiction before the Chartered High Courts and those in other
Courts. For historical reasons this distinction was maintained right
from the time the Letters Patent was issued, and has not been
disturbed by the Code of Civil Procedure, 1908, despite the
amendments made in the CPC from 1976 to 2002."
The Supreme Court held that the legislature has made a distinction between
the proceedings in other Civil Courts and proceedings on the Original Side of
Chartered High Courts, a distinction which has continued to be unaffected
right up to the last amendment of the C.P.C. The judgment of the Supreme
Court in Iridium also holds that the Letters Patent and the rules made
thereunder which are recognized and specifically protected by Section 129
are not relegated to a subordinate legislative status. The Supreme Court
held that the Letters Patent is a specific law under which the High Court
derives its powers and cannot be excluded by implication. In the event that
there is a conflict between the special law and the general law, the special law
will always prevail. The Letters Patent is a special law of the concerned High
Court whereas the C.P.C. is the general law applicable to all Courts.
44. Mr.J.P.Cama, Learned Senior Counsel for the Plaintiff submitted
that the procedure in regard to an Originating Summons has been in
existence for over sixty years and the principle of starc decisis should require
that it continue. We must clarify at the outset that what the Court is called
upon to decide is whether this particular Originating Summons attracts the bar
VBC 48/68 appl234.12
under Section 80 of the Bombay Public Trusts Act, 1950. The canvass upon
which we enter is what is necessary for the decision of this case.
45. The same view as taken in Iridium by the Supreme Court was
adopted in the earlier judgment of the Supreme Court in Vinita M.Khanolkar
vs. Pragna M.Pai,44 where it was held that the power flowing from Clause 15
of the Letters Patent which provides an intra court appeal from an order of a
Learned Single Judge in the exercise of the original jurisdiction would not be
excluded unless the statutory enactment expressly excludes appeals under
the Letters Patent. In Sharda Devi vs. State of Bihar,45 while dealing with
the maintainability of an appeal against an order of a Learned Single Judge in
appeal under Section 54 of the Land Acquisition Act, 1894 the Supreme Court
held that the powers given to the High Court under the Letters Patent "are
akin to the constitutional powers of the High Court". These observations in
Sharda Devi's case were explained in a subsequent judgment of a
Constitution Bench of the Supreme Court in P.S.Sathappan vs. Andhra
Bank Ltd.46 as merely laying down that the powers given to the High Court
are powers with which that High Court is constituted. The Supreme Court
held that these observations do not put the Letters Patent on par with the
Constitution.
46. The rules framed by this Court to govern proceedings on the
Original Side are relatable to the power vested in the Chartered High Court
44 JT 1997(9) SC 490
45 AIR 2002 SC 1357
46 (2004) 11 SCC 672
VBC 49/68 appl234.12
under Clause 37 of the Letters Patent. Section 129 of the Code of Civil
Procedure has empowered the High Court to frame rules to regulate its own
procedure in the exercise of its Original Civil Jurisdiction notwithstanding
anything in the Code, but in a manner that such rules are not inconsistent with
the Letters Patent. In relation to the Code of Civil Procedure 1908 which
constitutes a general law providing the procedure applicable to all Civil
Courts, the Letters Patent constitutes a special law under which the High
Court derives its powers. As a special law, the Letters Patent would prevail
over a general law which the CPC is. Section 129 recognises this position by
the non-obstante provision by which it is prefaced.
47. The rules which have been framed in relation to an Originating
Summons in Chapter XVII of the Original Side Rules cover diverse and broad
categories. Under Rule 238 diverse categories of persons may apply before
the Judge in chambers on an Originating Summons. These persons are : (i)
the executors or administrators of a deceased person; (ii) the trustees under
any deed or instrument; and (iii) any person claiming to be interested in the
relief sought as creditor, devisee, legatee, heir or legal representative or as a
beneficiary under the trusts of any deed or instrument, or claiming by
assignment or otherwise under any such creditor or other person as
aforesaid. Clauses (a) to (g) of Rule 238 specify the nature of the
determination that can be sought before the Judge in chambers in respect of
the questions or matters described therein. Rule 238 covers a determination
in respect of an estate or trust of the questions and matters referred to in
clauses (a) to (g). A comparison of the clauses of Rule 238 with the
VBC 50/68 appl234.12
provisions of the Bombay Public Trusts Act, 1950 would show that the Act has
made comprehensive provisions in respect thereof. For instance, Rule 238(c)
covers the furnishing of any particular accounts by the trustees and the
vouching of such accounts. Clauses (b) and (c) of Section 37(1) confer an
express power on the Charity Commissioner, the Deputy or Assistant Charity
Commissioner and any officer authorised to call for and inspect any book of
accounts and to call for any return, statement, account or report from the
trustees. Section 41A empowers the Charity Commissioner to issue
directions to any trustee of a public trust to ensure that the trust is properly
administered and the income is properly accounted for. Clause (d) covers the
payment into Court of any moneys in the hands of trustees. Apart from
Section 41A, which has been noted above, Section 41E confers wide powers
on the Charity Commissioner and the other authorities to prevent the waste,
damage or improper alienation of trust property. Clause (f) of Rule 238
provides for the approval of any sale, purchase, compromise or other
transaction. Section 36 of the Act provides for the previous sanction of the
Charity Commissioner before any sale, exchange or gift of immovable
property or a lease for a stipulated period can be entered into. This
comparison would indicate that a comprehensive machinery has been
provided in the Bombay Public Trusts Act, 1950 for the regulation of public
trusts. The Bombay Public Trusts Act 1950, as the Supreme Court has held
in the Church of North India is a self contained code and is a special law
enacted by the State legislature in public interest to provide for the proper
administration of public and religious trusts in the State. The Act provides, as
the Supreme Court held, a complete machinery for a person interested in a
VBC 51/68 appl234.12
trust to put forward his claim before the Charity Commissioner who is vested
with the power to conduct an enquiry and to render an adjudication. The bar
of jurisdiction under Section 80 is on every civil Court exercising jurisdiction to
decide or deal with any question which under the Act has to be decided or
dealt with by an officer or an authority under the Act and in respect of which
his decision or order has been made final and conclusive. The rules on the
Original Side regulate proceedings in civil cases brought before the High
Court and governs the procedure which is to be followed on the invocation of
the jurisdiction. The Bombay Public Trusts Act 1950 is a special law enacted
by the State legislature to provide a comprehensive machinery to deal with
the administration of public religious and charitable trusts in the State. The
explicit bar in Section 80 would consequently apply to a suit on the Original
Side in which the questions to be decided fall within the ambit of the bar
created by the statute. The bar under Section 80 would extend to the
procedure of an Originating Summons on the Original Side. Where a
question is required to be decided or dealt with by an officer or authority
under the Bombay Public Trusts Act 1950 and in respect of which his
determination has been made final and conclusive, the procedure envisaged
on an Originating Summons would be subject to the bar created by Section 80
of the Bombay Public Trusts Act 1950. The bar under Section 80 extends to
every civil court.
The question raised in the Originating Summons:
48. Several suits or proceedings have been instituted by the Plaintiff
and/or the Second Defendant and their group in which the interpretation of
VBC 52/68 appl234.12
diverse clauses of the Deed of Trust - as in the Originating Summons - was
placed in issue:
(i) The Plaintiff had instituted Short Cause Suit No.1997 of 2006
before the City Civil Court to inter alia challenge notices dated 27 April 2006
and resolutions adopted at a meeting held on 29 April 2006 and all purported
actions pursuant thereto. The suit was dismissed by the City Civil Court on
21/24 September 2007. The Trial Judge in the City Civil Court had held that
the bar under Section 80 of the Bombay Public Trusts Act, 1950 was not
attracted. While the contesting Defendants had filed first appeals, cross
objections were also filed on the question of jurisdiction. By an order dated 27
February 2009, the first appeals and cross objections were disposed of by this
Court and the suit was directed to stand dismissed for want of jurisdiction.
The relevant part of the order of the Court reads as follows:
"3. During the course of hearing, counsel appearing for
the Appellants had sought an adjournment of the proceedings
yesterday in order to consider the position of the Appellants
specifically with reference to the objection on the ground of
jurisdiction. All the learned counsel appearing for the Appellants
have informed the Court today that on a considered view of the
legal position and particularly having regard to the judgment of the
Supreme Court in Church of North India (supra) the Appellants
submit to the correctness of the cross objection, in the facts of the
suit out of which the First Appeals arise in this case. Having
regard to the concession which has been made on behalf of the
Appellants, which in the view of the Court is consistent with the
law laid down by the Supreme Court in Church of North India
(supra), the judgment of the Learned Trial Judge has been
rendered without jurisdiction. The findings which have been
tendered by the Learned Trial Judge on the merits of the case
consequently do not survive. This position is not in dispute
between the learned counsel appearing on behalf of all the parties
before the Court. It is agreed and understood by the learned
counsel that the suit would stand dismissed as being without
jurisdiction. There shall be an order in these terms." (emphasis
supplied)
VBC 53/68 appl234.12
The Eleventh Defendant to those proceedings had instituted a suit before the
City Civil Court47 and it was agreed before this Court that the suit shall be
withdrawn forthwith "since the issues which arise before the trial Court in that
suit will fall for determination by the Assistant Charity Commissioner in the
course of the adjudication of the change report". Mr.I.M.Chagla, Learned
Senior Counsel stated before the Court that the proceedings in respect of
some of the change reports are now ripe for cross examination on the affidavit
of evidence.
(ii) Another suit instituted by the Second Defendant 48 who is
supporting the Plaintiff was dismissed as withdrawn by the City Civil Court on
6 March 2009.
(iii) The Plaintiff had filed an application before the Joint Charity
Commissioner49 under Section 41-D of the Bombay Public Trusts Act 1950
which was disposed of on 25 September 2009. A petition challenging the
order of the Joint Charity Commissioner was dismissed on 2 March 2010 and
a Letters Patent Appeal was dismissed on 1 December 2010. A Special
Leave Petition is pending.
(iv) The Plaintiff has also instituted another suit before the City Civil
Court50 seeking a declaration that it is only the permanent trustees who have
47 B.C.C. Suit 444 of 2006
VBC 54/68 appl234.12
the right to appoint permanent trustees under Clause 17 of the deed of trust
and challenging a resolution passed in a meeting on 19 August 2010. The
suit is stated to be pending in the City Civil Court. An ad-interim application
was rejected in the suit on 27 August 2010 and an Appeal from order was
dismissed on 20 January 2011.
(v) A suit was instituted by the Second, Twelfth and Fourteenth
Defendants in the City Civil Court to challenge a notice dated 16 January
2007 and for injunctive relief against Defendants 1 to 7, 9 to 10. The suit was
dismissed on 25 February 2009.
(vi) The Plaintiff instituted a Short Cause Suit 51 before the City Civil
Court inter alia seeking a declaration that (i) Vijay Mehta, the First Defendant
to the suit, was not entitled to exercise any power in regard to the
appointment of trustees under Clauses 17 and 20 of the Deed of Trust; (ii)
Vijay Mehta could appoint not more than five trustees under clause 20; (iii)
The appointment of the Second and Third Defendants to the suit in excess of
the right conferred upon Vijay Mehta under clause 20, was unlawful. The suit
has been dismissed by the City Civil Court on 16 November 2009 having
regard to the fact that in view of the express provisions made in the Bombay
Public Trusts Act, 1950 regarding change reports and enquiries, the
jurisdiction of the Civil Court was barred by Section 80.
51 S.C.Suit 1795 of 2008
VBC 55/68 appl234.12
49. The matters which form the subject of the Originating Summons
have specifically been placed in issue in several proceedings instituted on
change reports submitted to the Charity Commissioner which are pending
adjudication. A chart has been tendered before this Court by Mr. I.M. Chagla,
learned senior counsel appearing on behalf of the Appellant in Appeal (Lodg.)
No.253 of 2012 containing a list of proceedings where the interpretation of
clauses 11(h), 11(j), 11(k) and of clauses 14,16, 17 and 20 of the trust deed
has arisen. The correctness of the chart has not been disputed by Counsel
for the Plaintiff. The chart would indicate that in as many as six proceedings
change reports are pending before the Assistant Charity Commissioner for
taking on record the continuation / extension of Defendants 5, 6, 7, 8, 9 and
11 as permanent trustees where the provisions of clause 11(j) of the Deed of
Trust are directly in issue in those change reports. The interpretation of
Clause 20, is raised in about 7 change reports 52 which are pending. Similarly,
the interpretation of clause 14 of the deed of trust is specifically in issue in
several change reports53 which are pending before the Assistant Charity
Commissioner.
50. In every one of the change reports which have been filed before
the Assistant Charity Commissioner, the interpretation of the relevant
provisions of the deed of trust is directly in issue and is a question which is
required to be decided or dealt with by him in pursuance of the enquiry under
Section 22(3). The mode of succession to the office of trustees under the
52 Change Report Nos. 3899/2004, 314/2007, 1411/2007, 1408/2007,
2201/2008, 2202/2008, ..../2011.
53 Change Report Nos. 403/2006, 1564/2006, 1565/2006, 2205/2008, .../2010,
3504/2010, 3505/2010 4836/2010, 1991/2011, Revision 36 of 2009.
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deed of trust and the validity of the appointments made is in issue. These are
questions which have to be dealt with and decided by the Assistant Charity
Commissioner in the course of his enquiry in the change reports. The entries
which the Assistant Charity Commissioner would make in consequence of his
findings on whether or not a change has taken place in the office of trustees
are made final and conclusive. An overall reading of the plaint would also
make it abundantly clear, that what the Plaintiff seeks is not - as suggested
by Counsel - a pure or abstract question of interpretation of the clauses of the
Deed of Trust. There are live disputes between the parties - disputes over
the appointment of trustees, the mode of succession and the validity of
meetings - which are the subject matter of change reports, which are
pending. For the purpose of determining jurisdiction, it is evident from a bare
reading of the averments contained in the plaint that the change reports are
pending. The Originating Summons does not raise only questions of
interpretation. Matters which are pending before the Assistant Charity
Commissioner are sought to be brought before this Court in the guise of an
Originating Summons. In this view of the matter, the jurisdiction on an
Originating Summons under Rule 238 would attract the bar under Section 80
of the Bombay Public Trust Act 1950 in respect of the questions which are
required to be decided or dealt with by the Assistant Charity Commissioner
and to which finality attaches.
Exercise of discretion
51. Rule 246 of the High Court (Original Side) Rules makes it
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clear that the Court or the judge in chambers shall not be bound to
determine any such question of construction if in its or his opinion it
ought not to be determined on an Originating Summons. The
Learned Single Judge has held that the questions sought to be
raised cannot appropriately be addressed in an Originating
Summons and in the circumstances, came to the conclusion that
this was not a fit and proper case for the exercise of the discretion.
Since we have come to the conclusion that the bar under Section 80
was attracted, the question as to whether discretion should or should not be
exercised to entertain the Originating Summons would not survive. However,
since the Learned Single Judge has expressed a view on this and for
completeness, we are dealing also with that aspect.
52. The view which has been taken on this aspect by the learned
Single judge commends itself, with respect, as a preeminently justifiable view.
Firstly, as the discussion above will evidence a large number of matters
arising out of change reports submitted under Section 22 are pending
adjudication before the authorized officer involving the very issues which are
sought to be raised in these proceedings. Secondly, the interpretation of the
deed of trust is only one aspect of the matters in issue between the parties.
The Deed of trust was executed on 5 July 1978. Kirtilal was appointed as a
permanent trustee. In July 1990, Vijay Mehta was appointed as a trustee
(originally as a term trustee and thereafter as permanent trustee). Kirtilal
died in 1993. The Second Defendant, Kishore Mehta was removed as a
trustee in 2004 and the Court has been informed that in or about April 2005
VBC 58/68 appl234.12
the first proceeding was initiated upon his removal. The conduct of the
trustees and the manner of administering the trust, the manner in which the
terms of the deed of trust were construed would all assume relevance.
53. In paragraph 17 of the Plaint, it has been stated that Vijay Mehta
appointed the Fifth Defendant on 15 January 2007 though he had already
appointed five trustees earlier. All the five persons appointed by him were
already acting as trustees and it is therefore sought to be submitted that he
could not have appointed the Fifth Defendant as a sixth appointee by
exercising his power under Clause 20. Why the Plaintiff waited until 2011
when the Originating Summons was taken out is a matter which would have
to be explained in evidence. As regards the disqualification of the Second
Defendant the case of the Plaintiff is that as a matter of record he did obtain
the leave of the Board of trustees. This is a question of fact on which
evidence would be necessary. In paragraph 35 of the Plaint, the Plaintiff has
specifically placed in issue the manner in which the trust was administered in
relation to the appointment of trustees from its inception, till the appointment
of Defendant No.11 and it has been alleged that all trustees were appointed
under Clauses 17 or 20 of the trust deed in accordance with the wishes of the
settler. Any resolution of the dispute between the parties cannot hence turn
on a pure question of interpretation. Other factual issues including whether
resolutions were passed at a duly constituted meeting and the persons who
were present when the resolutions were passed are matters on which
evidence would have to be adduced.
VBC 59/68 appl234.12
54. Clause 20 of the Deed of trust provides that during his life time
Kirtilal would have the power to appoint from time to time and to reappoint and
continue the appointment of not more than five trustees. After his death his
son Vijay was vested with the "same power to appoint not less than five
trustees". The Plaintiff submits that the expression "not less than five
trustees" should be construed to mean not more than five trustees having
regard to the use of the words "the same power". This would involve an
exercise in rewriting the words of the deed of trust, something which in any
event would not be permissible for the Court on an Originating Summons.
55. Where the words of an instrument are ambiguous, evidence as
regards the conduct of parties is admissible to construe the manner in which
parties construed the language of the instrument. Mr.Justice Patanjali Shastri
(as the Learned Judge then was) speaking for a Constitution Bench of the
Supreme Court in Abdulla Ahmed v. Animendra Kissen Mitter 54 formulated
the principle in the following words :
"The evidence of such conduct is relevant in this case
because, as pointed out by Viscount Simon, L.C., in the case already
referred to, the phrase "finding a purchaser" is itself not without
ambiguity. Here the phrase is "securing a purchaser". This phrase
similarly is not without ambiguity. The evidence of conduct of the
parties in this situation as to how they understood the words to mean
can be considered in determining the true effect of the contract made
between the parties. Extrinsic evidence to determine the effect of an
instrument is permissible where there remains a doubt as to its true
meaning. Evidence of the acts done under it is a guide to the intention
of the parties in such a case and particularly when acts are done
shortly after the date of the instrument. (Vide para 343 of Hailsham
Edn. of Halsbury, Vol. 10, p. 274)." 55
54 AIR 1950 SC 15.
55 at para 27.
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56. In The Godhra Electricity Co. Ltd. v. The State of Gujarat 56 the
principle was reiterated in the felicitous words of Mr.Justice K.K.Mathew :
"A word or a phrase, is not always crystal clear. When both parties
subsequently say that by the word or phrase which, in the context,
is ambiguous, they meant this, it only supplies a glossary as to the
meaning of the word or phrase. After all, the inquiry is as to, what the
intention of the parties was from the language used. And, why is it that
parties cannot clear the latent ambiguity in the language by a
subsequent interpreting statement? If the meaning of the word or
phrase or sentence is clear, extrinsic evidence is not admissible. It
is only when there is latent ambiguity that extrinsic evidence in the
shape of interpreting statement in which both parties have concurred
should be admissible. The parties themselves might not have been
clear as to the meaning of the word or phrase when they entered
into the contract. Unanticipated situations might arise or come into the
contemplation of the parties subsequently which would sharpen their
focus and any statement by them which would illuminate the darkness
arising out of the ambiguity of the language should not be shut out.
In the case of an ambiguous instrument, there is no reason why
subsequent interpreting statement should be inadmissible." 57
57. In Delta International Ltd. v. Shyam Sundar Ganeriwalla 58 the
same principle was applied in determining as to whether a document created
a lease or a licence :
"The intention of the parties is to be gathered from the document itself.
Mainly, the intention is to be gathered from the meaning and the words
used in the document except where it is alleged and proved that the
document is a camouflage. If the terms of the document evidencing
the agreement between the parties are not clear, the surrounding
circumstances and the conduct of the parties have also to be borne in
mind for ascertaining the real relationship between the parties." 59
56 AIR 1975 SC 32.
57 at para 17 page 37.
58 (1999) 4 SCC 545.
59 at para 16 page 559.
VBC 61/68 appl234.12
58. Consequently, where the terms of an instrument are ambiguous
as in the present case, the conduct of the parties assumes relevance for
assessing the manner in which they construed the document. The disputes
between the parties in the present case cannot be resolved purely on the
basis of an interpretation of the trust deed. Added to this, we may also note
the submission of Mr. Mahesh Jethmalani in support of the submissions of the
Plaintiff that there was an oral deed of trust which predated the execution of
the trust deed on 5 July 1978. On this basis, learned counsel sought to urge
that the disqualification, if any, in Clause 14 of the deed of trust which
adverts to "the trustees hereby constituted" would not apply to the three
permanent trustees who - according to the submission - had been appointed
prior to the constitution of the trust by the written deed of instrument. This
submission overlooks the pleadings of the Plaintiff in paragraph 4 of the
Plaint which is that the Plaintiff, the Second Defendant and the Third
Defendant were the first trustees of the trust under Clause 16 of the trust
deed. But quite apart from that, we are of the view that this submission again
is in itself indicator of the fact that the procedure of an Originating Summons
would manifestly be inappropriate for the resolution of the disputes between
the parties.
59. An application under Section 41D of the Bombay Public Trusts
Act, 1950 was filed by the Plaintiff for the removal of nine trustees. 60 The
application was dismissed on 25 September 2009 by the Joint Charity
Commissioner, save and except in respect of Vijay Mehta, who was
VBC 62/68 appl234.12
dismissed as a trustee. In the course of the judgment, the Joint Charity
Commissioner held that the delegation of power by a trustee was permissible
in law if permitted by the Deed of Trust and, such a delegation is permissible
in law under the Trust Deed in question. The dismissal of the application was
questioned before the Learned Single Judge of this Court in a Writ Petition,
which was dismissed on 2 March 2010. 61 Vijay Mehta died during the
pendency of the proceedings before the Learned Single Judge of this Court.
The order of the Learned Single Judge was confirmed by a Division Bench on
1 December 2010.62 On the basis of this determination by the Charity
Commissioner, it has been sought to be urged in defence to the Originating
Summons that a plea of issue of estoppel would arise which cannot
appropriately be adjudged in an Originating Summons. In the view which has
been taken by us, it is not necessary to enter any conclusive finding on the
point of issue estoppel. We have earlier noted the judgment of a Division
Bench of the Calcutta High Court that on questions of estoppel which do not
raise pure questions of law, an Originating Summons is not an appropriate
remedy (Gokul Chand De vs. Gopi Nath Dey (supra). Independently of this
aspect, we have come to the conclusion that the Learned Single Judge has
correctly exercised his discretion in not entertaining the Originating Summons.
60. In the view which we have taken, we have come to the conclusion
that (i) The bar under the provisions of Section 80 of the Bombay Public
Trusts Act 1950 was attracted and the Learned Single Judge was in error in
holding to the contrary; (ii) In any event this is not a fit and proper case for
61 Writ Petition 9501 of 2009
62 Letters Patent Appeal 268 of 2010
VBC 63/68 appl234.12
the entertainment of an Originating Summons and the Learned Single Judge
was justified in declining to exercise his discretion. Before concluding we may
also note that before the learned Single Judge, the provisions of Section 50 of
the Bombay Public Trusts Act 1950 were sought to be pressed in aid in
defence to the maintainability of the Originating Summons. Section 50, it may
be noted, applies to a suit of a specified nature in any case which attracts the
provisions of Clauses (i) to (iv) thereof. Section 50 requires the consent of the
Charity Commissioner to institute a suit for reliefs of a specified nature. The
Learned Single judge was, in our view, correct in holding that Section 50 was
not attracted to the facts of the present case since the Originating Summons
did not meet the description as referred to in Section 50.
61. One of the objections urged before the Learned Single Judge to
the maintainability of the Originating Summons was that under Clause 11(v) of
the Deed of Trust, the trustees have the power to decide all questions arising
in the administration of the trust including all questions relating to the
interpretation of the trust deed or any clause thereof. A bar of jurisdiction
cannot be created by a contract between parties or an instrument which they
create. The Learned Single Judge held that clause 11(v) may be relevant to
the exercise of discretion but not to the existence of jurisdiction. This issue
need not detain us any further and we have referred to it for completeness.
Limitation :
62. The schedule to the Limitation Act, 1963 prescribes period of
limitation. The first division relates to suits; the second division relates to
VBC 64/68 appl234.12
appeals, while the third division relates to applications. Part-I of the third
division which contains Articles 118 to 136 deals with applications in specified
cases. Part-II of the third division relates to other applications. Article 113 and
137 are as follows :
"FIRST DIVISION - SUITS
PART X - SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD
113. Any suit for which no Three years When the right to sue
period of limitation is accrues.
provided elsewhere in
this Schedule.
THIRD DIVISION - APPLICATIONS
"PART II - OTHER APPLICATIONS
-137 Any other application for Three years When the right to apply
which no period of accrues.
limitation is provided
elsewhere in this division."
63, In the present case, it has been averred in paragraph 55 of the
Plaint that "no part of (the) cause of action in the present suit is barred by the
law of limitation". The submission which was urged before the Learned Single
Judge was that the Plaintiff had, more than three years prior to the filing of the
Originating Summons, disputed the interpretation of the same clauses of
which interpretation is now sought and the contesting Defendants had acted
on the basis of the disputed interpretation more than three years prior to the
filing of the Originating Summons.
64. The Learned Single Judge recorded in paragraph 58 of the
VBC 65/68 appl234.12
judgment that the Plaintiff agreed that except Clause 11(j), the interpretation
of the clauses of the Trust Deed by the contesting Defendants had been
disputed more than three years prior to the filing of the Originating Summons.
On behalf of the Trust reliance was placed on the affidavit of evidence dated 8
June 2007 of the First Plaintiff in Short Cause Suit 1997 of 2006 to submit that
the interpretation of Clause 11(j) by the contesting Defendants had also been
disputed. The Learned Single Judge noted that "by contending that the
permanent trustees can be appointed only by permanent trustees under
Clause 17, the Plaintiffs had indeed impliedly contended that the power under
Clause 11(j) is not available for the appointment of permanent trustees."
Consequently, the Learned Single Judge proceeded on the basis that the
question of interpretation of the said clauses had fallen for consideration and
was disputed between the parties more than three years before the filing of
the Originating Summons.
65. The Learned Single Judge extracted the provision of Article 113 of
the Schedule to the Limitation Act, 1963 which governs a suit for which no
period of limitation is provided elsewhere and for which the period of limitation
of three years commences when the right to sue accrues. While extracting
Article 137, the judgment of the Learned Single Judge contains an inadvertent
error, in that, the period from which limitation begins to run is described as
"when the right to sue accrues". Actually limitation under Article 137
commences when the right to apply accrues. The Learned Single Judge held
that in an Originating Summons, the question of a right to sue does not arise
since there is no lis between the parties and the right under Rule 238 to seek
VBC 66/68 appl234.12
an interpretation is a continuing right.
66. In Kerala State Electricity Board vs. P.T.Kunhaliumma,63 the
Supreme Court while interpreting Article 137 of the Schedule to the Limitation
Act, 1963 held that applications contemplated by the provision are not
applications confined to the Code of Civil Procedure, 1908, and the words
"any other applications" in Article 137 cannot be said on the principle of
ejusden generis to be applications under the Code of Civil Procedure, 1908,
other than those mentioned in Part-I of the third division. Counsel for the
Plaintiff laid emphasis on the observations in the judgment that any other
application under Article 137 would be a petition or any application under any
Act, in order to submit that an application under Rule 238 of the Original Side
Rules which are framed under Clause 37 of the Letters Patent is not an
application under an Act. In the decision in Addl. Spl. Land Acquisition
Officer vs. Thakoredas,64 the Supreme Court has interpreted the earlier
judgment.
67. In the present case, the Learned Single Judge has proceeded on
the hypothesis that the Originating Summons taken out by the Plaintiff was for
interpretation of the Deed of Trust. It was on that hypothesis that the Learned
Single Judge came to the conclusion that the bar under Section 80 would not
apply in view of his finding that the Assistant Charity Commissioner does not
have the power to interpret a Deed of Trust simpliciter. The same reasoning
has been extended by the Learned Single Judge to the issue of limitation
63 AIR 1977 SC 282
64 (1997) 11 SCC 412
VBC 67/68 appl234.12
while holding that a pure question of interpretation does not involve a lis and
there being no accrual of the right to sue, limitation would not be attracted.
We have, in the earlier part of this judgment, come to the conclusion that the
Originating Summons in the present case, does not raise a pure issue of
interpretation. The real object and purpose of the Originating Summons was
to bring before this Court for adjudication, matters arising before the Assistant
Charity Commissioner in change reports in which the interpretation of the
Deed of Trust is directly in question. There are live disputes between the
parties which are pending before the Assistant Charity Commissioner, some
even at an advanced stage where the affidavit of evidence has been filed and
cross examination is to take place. Having regard to this position, it would
have been necessary for this Court, if it were to come to the conclusion that
the bar under Section 80 was not to apply to direct a fresh consideration of
the entire issue of limitation by the Learned Single Judge. Since we have
come to the conclusion that the Originating Summons is barred by the
provisions of Section 80 of the Bombay Public Trusts Act, 1950, it is not
necessary so to do since the Originating Summons is liable to be dismissed
in view of the bar of jurisdiction. After having considered the submissions on
the issue of limitation, we are of the view that it would not be appropriate for
this Court to render a final or conclusive determination on that aspect, in view
of the finding on the absence of jurisdiction due to the bar under Section 80.
68. Consequently and for the reasons aforesaid, Appeal (Lodg.) 253
of 2012 shall have to be allowed and is accordingly allowed in view of our
finding that the Originating Summons was barred by Section 80 of the
VBC 68/68 appl234.12
Bombay Public Trusts Act 1950. Appeal (Lodg.) No.234 of 2012 shall
accordingly stand dismissed.
69. In the circumstances of the case, there shall be no order as to
costs.
( Dr.D.Y.Chandrachud, J.)
( A.A. Sayed, J. )
